Journalistic privilege acknowledged in law but is not absolute
If the opening statement at the Disclosures Tribunal issued by Mr Justice Peter Charleton is anything to go by, he has hit the ground running in attempting to deduce whether senior garda figures and/or their agents acted maliciously towards Sergeant Maurice McCabe and others.
Central to that is the issue of what privilege — if any — attaches to communications either given to or received by journalists reporting on the whistleblower scandal.
Under its terms of reference, the tribunal is tasked with examining relationships between the gardaí and the media and, in particular, whether senior members of the force told journalists that Sgt McCabe was motivated by malice and revenge.
Judge Charlton appears to be keeping an open mind on the issue of privilege, although he suggests that a ruling by him on the matter may be necessary before addressing the substantive issues at hand.
The statement poses more questions than answers:
“Is there a privilege against giving evidence, including relevant records where someone communicates in confidence, or off the record, as the phrase goes, to a journalist?
“If that privilege exists, does it exist because of the public interest in protecting investigations by the media?
“Does journalistic privilege attach to communications to a journalist where that communication by the source may not be in the public interest but, instead, where the source is perhaps solely motivated by detraction or calumny?”
One of the main witnesses to the tribunal will be Superintendent David Taylor, former head of the garda press office, who claims he was told to brief the media negatively about Sgt McCabe.
The tribunal will also examine broadcasts on RTÉ television last May purporting to be a leaked account of the unpublished O’Higgins Commission report and will consider whether the Garda Commissioner used briefing material prepared at Garda headquarters to influence those broadcasts.
Although Judge Charleton says that the tribunal has no settled view on the issue of privilege, he makes it clear that it lies with the informer, not the journalist and that only the informer may waive it. The same goes for lawyer-client privilege. Only the client may waive the privilege and reveal the confidential instructions given to the lawyer.
He also hints that privilege may only attach to truthful information, asking: “Is it possible that such a privilege does not apply to using the media as an instrument of naked deceit?”
The law in Ireland has come a long way since the 1970s when journalists faced jail if they refused to disclose sources of information to a court.
In 1972, RTÉ journalist Kevin O’Kelly was jailed for contempt of court for refusing to outline the circumstances of an interview he had conducted with Provisional IRA chief of staff Seán Mac Stiofáin.
Although he only served two days of a three-month sentence, remarks made by the judge at Mac Stiofáin’s criminal trial, sent shivers down the spines of most of his journalistic colleagues.
Rejecting the concept of privilege against disclosure, Judge Walsh said: “Journalists and reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence. The fact that a communication was made under terms of express confidence or implied confidence does not create a privilege against disclosure.
“So far as the administration of justice is concerned, the public has a right to every man’s evidence except for those persons protected by a constitutional or other established and recognised privilege.”
That stance was modified in the 1994 case of Burke v Central Independent Television, where the plaintiffs sued for libel after a TV show made a series of allegations linking them to terrorism.
On appeal, the Supreme Court held that, given the assertion that production of documents would imperil life, the constitutional right to protection of life and bodily integrity must take precedence over a citizen’s right to protect or vindicate his good name.
The enactment of the European Convention on Human Rights Act 2003 and the principles affirmed in the case law of the European Court of Human Rights have led to a further substantial shift in the Irish position towards greater recognition of journalistic privilege.
Article 10 of the European Convention on Human Rights provides that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
However, as recently as 2007, a High Court judge was sceptical about a journalist’s attempt to assert “a questionable privilege in support of his refusal” to reveal a garda source.
The matter appeared to be finally settled in The Irish Times’ 2009 case, Mahon Tribunal v Keena and Kennedy, in which the Supreme Court, while relying heavily on the article of the European Convention, also acknowledged journalistic privilege as a constitutional principle for the first time.
Protecting sources is a bedrock of journalistic ethics and the protection of confidential sources is a guiding principle of the Press Council Code of Practice for Newspapers and Periodicals.
But while the Irish courts now exhibit a far greater willingness to accept the right to non-disclosure of journalistic sources as a distinct category of private privilege, the Supreme Court in The Irish Times case insisted that such right is not absolute.
Journalists will still be compelled to answer questions or reveal sources by a court if disclosure is deemed justified “by an overriding requirement in the public interest”. That means journalistic privilege has to be balanced against other rights, such as that of a tribunal to conduct its business.
Journalistic privilege was central to the 2012 case of Cornec v Morrice during which the presiding judge, Mr Justice Gerard Hogan, stated: “While I have thus far loosely spoken of a journalistic privilege, there is, in fact, in strictness, no such thing. The protection is rather the high value which the law places on the dissemination of information and public debate.
“Journalists are central to that entire process, a point expressly recognised by Article 40.6.1.i of the Constitution itself when it recognises ‘their rightful liberty of expression’ on the part of the press, albeit counter balanced by the stipulation that this rightful liberty shall not be used to undermine ‘public order or morality or the authority of the State’.”
He did, however, recognise that “the constitutional right in question would be meaningless if the law could not (or would not) protect the general right of journalists to protect their (journalists) sources”, adding that “the public interest in ensuring that journalists can protect their sources remains very high, since journalism is central to the free flow of information which is essential in a free society.”
But who will perform the balancing act when journalistic privilege and other rights compete? Not the journalist, that’s for sure.
Posing the question: “Who would decide whether the journalist’s source had to be protected?” Judge Hogan said: “There can be only one answer. In the event of conflict, whether in a civil or criminal context, the courts must adjudicate and decide, while allowing all due respect to the principle of journalistic privilege. No citizen has the right to claim immunity from the processes of the law.”
